When the Social Services Commission is asked to expand who qualifies as a 'special needs child' for adoption assistance, can it adopt a temporary rule, and what budget approval will the change require?
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This page answers the general question as of 1996. Ask about yours and see what current North Carolina law means for your facts, with citations you can check.
Plain-English summary
The opinion discusses a petition to expand eligibility for assistance to adopted special needs children. It lists six circumstances that can support a temporary rule under G.S. § 150B-21.1(a), including a serious and unforeseen threat to public health, safety, or welfare; the effective date of a recent legislative act; a recent budget policy change; a federal regulation; a court order; or a rule tied to the State Medical Facilities Plan. It does not decide whether the petition meets any of those criteria. The opinion also says temporary rules must lead to permanent rule changes.
If the Social Services Commission grants the petition, the AG says expanded eligibility would have a fiscal impact and trigger G.S. § 150B-21.4(a). Before publishing the proposed text of a permanent rule that would require spending or distributing funds under the Executive Budget Act, the agency must submit the text and a fiscal note to the Director of the Budget and obtain certification that funds are available. The AG calls it speculative whether the Director could certify a rule changing this eligibility requirement.
Currency note
This opinion was issued in 1996. Check the current rulemaking and budget statutes before relying on its procedural account.
Common questions
Did the AG decide whether the petition qualified for a temporary rule?
No. The opinion lists the six statutory criteria but does not apply them to the petition.
Would a temporary rule end the rulemaking process?
No. The opinion says all temporary rules are required to lead to permanent rule changes.
What must happen before a permanent rule with a fiscal impact is published?
The agency must submit the proposed text and a fiscal note to the Director of the Budget and obtain certification that the necessary funds are available. The note must state the amount to be spent or distributed and explain how that amount was computed.
Did the AG say funds were available for the proposed expansion?
No. The opinion says whether the Director of the Budget could certify such a rule is speculative.
Source
Citations
- N.C.G.S. § 150B-21.1(a)
- N.C.G.S. § 150B-21.4(a)
- Executive Budget Act, Article 1 of Chapter 143
- 10 N.C.A.C. 25.0101
Original opinion text
[Note: The published version of this opinion as recovered from the NCDOJ archive begins mid-text. The reproduction below preserves the original AG's prose verbatim from where the recovered text begins.]
- (1) A serious and unforeseen threat to the public health, safety, or welfare.
- (2) The effective date of a recent act of the General Assembly or the United States Congress.
- (3) A recent change in federal or State budgetary policy.
- (4) A federal regulation.
- (5) A court order.
- (6) The need for the rule to become effective the same date as the State Medical Facilities Plan approved by the Governor, if the rule addresses a matter included in the State Medical Facilities Plan.
G.S. § 150B-21.1(a). Please note further that all temporary rules are required to lead to permanent rule changes. For your convenience a copy of 10 N.C.A.C. 25.0101, which sets forth the requirements for submitting a petition, is attached.
Should the Commission grant your petition, it appears obvious that an expansion of eligibility for adopted special need children will result in a fiscal impact, which will trigger G.S. § 150B-21.4(a). It states:
(a) State Funds – Before an agency publishes in the North Carolina Register the proposed text of a permanent rule change that would require the expenditure or distribution of funds subject to the Executive Budget Act, Article 1 of Chapter 143, it must submit the text of the proposed rule change and a fiscal note on the proposed rule change to the Director of the Budget and obtain certification from the Director that the funds that would be required by the proposed rule change are available. The fiscal note must state the amount of funds that would be expended or distributed as a result of the proposed rule change and explain how the amount was computed. The Director of the Budget must certify a proposed rule change if funds are available to cover the expenditure or distribution required by the proposed rule change.
Whether or not the Director of the Budget could certify a rule changing the eligibility requirements for assistance to adopted special need children is speculative.
In any event, even if Social Services Commission does approve your petition, it may be some time before it can achieve the desired result.
MICHAEL F. EASLEY
Attorney General
Ann Reed
Senior Deputy Attorney General
Robert J. Blum
Special Deputy Attorney General
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